"Kennedy v. Louisiana and the Future of the Eighth Amendment"

The title of this post is the title of this article just posted to SSRN and authored by Alexandra L. Klein.  Here is its abstract:

In 2023, Florida passed a law permitting the imposition of the death penalty for the rape of a child under twelve. Tennessee enacted a similar law in 2024.  These laws conflict with Kennedy v. Louisiana, a 2008 decision in which the Supreme Court held that imposing the death penalty for the rape of a child violated the Eighth Amendment’s Cruel and Unusual Punishments Clause because it was inconsistent with the evolving standards of decency.  Legislators in Florida and Tennessee have expressed their hope that the Supreme Court will overrule Kennedy v. Louisiana.  These laws, which resemble state attempts to undo abortion protections through legislation, are not just death penalty politics. Scholars have warned that the Court’s growing reliance on original meaning, history, and tradition may undo extant Eighth Amendment protections.  States have filed amicus briefs asking the Court to reject Eighth Amendment precedent.  More recently, in City of Grants Pass v. Johnson, the Court described the Eighth Amendment in narrow, historically focused terms, signaling that further alterations to the Eighth Amendment are coming.

This Article addresses the potential for overruling Kennedy v. Louisiana and what that may mean for the future of the Eighth Amendment’s Cruel and Unusual Punishments Clause.  While Kennedy is settled law, the Court’s current approach to constitutional questions and recent Eighth Amendment jurisprudence demonstrate that constitutional protections that were assumed to be settled are now at risk, and the Eighth Amendment is in jeopardy.  The Supreme Court’s recent decision in Grants Pass demonstrates that the Court is currently “stealth overruling” its Eighth Amendment jurisprudence.  The Court is likely to continue this project because of changes to its membership, its new approach to stare decisis, and legislative opportunism.  This Article contributes to recent academic literature that addresses the future of the Eighth Amendment by analyzing how new state laws expanding capital offenses to include the rape of a child may undermine precedent through the Court’s reliance on “democratic deliberation” narratives, as described in scholarship by Professors Melissa Murray and Katherine Shaw that addresses the aftermath of Dobbs v. Jackson Women’s Health Organization.

This Article offers two possible future directions for Eighth Amendment jurisprudence: “devolving” standards of decency — in which states can create a national consensus to undo constitutional protections — or, more likely, a restrictive historical approach.  This Article concludes by discussing how these changes threaten the stability of Eighth Amendment jurisprudence and explaining the risks of legislative and judicial expansion of the death penalty after decades of judicial rulings that attempted to narrow it.  It may be tempting to dismiss the consequences of overruling Kennedy — people convicted of sexually assaulting children are targets of universal revulsion.  But changing constitutional and legal standards because of outrage at criminal conduct weakens vital constitutional protections against cruel and unusual punishment.